Limited liability for WLAN misuse for file-sharing

The Federal Court of Justice (BGH) ruled by judgment of 12.05.2010 (I ZR 121/08 – Sommer unseres Lebens) that liability for misuse of one's own WLAN by third parties is limited in such a way that whilst a claim for cessation exists, no claim for damages is available. The warning letter costs to be reimbursed are generally limited to € 100.00 pursuant to § 97a UrhG.

In the decided case, the defendant's internet access was misused during his absence on holiday for the use of a file-sharing network (file-sharing). The WLAN router was indeed secured with the WPA standard that was current at the time in question (2006). However, the router password was left on the commonly known factory default setting. This made it ultimately possible for the unknown third party to provide files in a file-sharing network or peer-to-peer network via the WLAN router.

The Federal Court of Justice (BGH) has now established that the operator of a WLAN router is subject to certain duties of care in order to prevent such misuse. It is at least required that the factory-set password of the router be replaced with one of its own and a secure encryption method be chosen (today WPA2). Conversely, there is no obligation to incur financial expenditure in order to keep up to date after initial commissioning.

As a result, the court affirmed the defendant's liability as a malicious actor (Störerhaftung), since it would have been possible for the defendant to prevent the intellectual property infringement with reasonable effort. The consequence is an appropriate claim for cessation and the obligation to reimburse the warning letter costs. According to the court's view, these are now limited to € 100.00 pursuant to § 97a UrhG. However, the provision was not yet applicable to the facts to be assessed from the year 2006. The defendant should therefore have already issued a corresponding (modified) declaration of cessation before the proceedings, in order to protect himself from the costly lawsuit.

The Federal Court of Justice (BGH), by contrast, rejected further liability for payment of damages. The defendant should not be classified as a perpetrator or participant in the copyright infringement, as he lacked the requisite intent. Mere negligence in the operation of a WLAN router only gives rise to liability as a malicious actor (Störerhaftung) and thus precludes a claim for damages.

This view can be generalised further. Basically, it is the responsibility of the rights holder to prove the prerequisites for a claim for damages – above all culpability (= intent) – which in any case regularly cannot succeed in multi-person households. In accordance with our view that we have held for many years, there is therefore generally no claim for damages or the necessary evidence cannot be provided. The claim for cessation can be dealt with early by issuing a declaration of cessation. Since the warning letter costs are moreover capped at € 100.00, in practice file-sharing warnings are by no means taken as seriously as they are made out to be by the rights holders or their lawyers.

Should you already have a warning letter, you should best read the following: Warning letter for file-sharing – what is to be done?